Coffey and Australian Postal Corporation
[2005] AATA 597
•23 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 597
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1000
GENERAL ADMINISTRATIVE DIVISION )
Re ROSLYN ANNE COFFEY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms MJ Carstairs, Member Date 23 June 2005
Place Brisbane
Decision The reviewable decision dated 6 November 2002 is set aside in part. The Tribunal substitutes the decision that the respondent is liable to pay compensation for soft tissue injuries to the applicant’s cervical and thoracic spine (the ‘injuries’) sustained on 4 May 1999. Under s16 and s19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), the applicant is entitled, respectively:
(a) to the cost of any reasonable medical treatment for the injuries; and
(b) to incapacity payments for the period from 4 May 1999 until 10 September 1999, that is, the date when the applicant’s injuries resolved.
In all other respects the reviewable decision dated 6 November 2002 is affirmed.
The respondent is liable under s67(8) of the Act to pay the applicant’s costs of the application as it relates to the injuries.
.................[Sgd]........................
MJ Carstairs
Member
CATCHWORDS
COMPENSATION – motorcycle accident in course of employment – delay in claim - whether applicant suffered soft tissue injuries to the cervical and thoracic spine – whether the respondent now liable for compensation for the injuries – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 17, 53, 67(8)
Oudyn v Australian Postal Corporation (2003) 73 ALD 659
Re Lui and Comcare [2004] AATA 617
Plumb v Comcare (1992) 39 FCR 236Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Elleissy v Australian Telecommunications Commission (1989) 18 ALD 240
McAuliffe v Comcare [2002] FCA 769
Tubemakers of Australia v Fernandez (1976) 50 ALJR 720
Caswell v Powell Duffryn Associated Collieries [1939] 3 All ER 722REASONS FOR DECISION
23 June 2005 Ms MJ Carstairs, Member 1. This is an application by Roslyn Anne Coffey (the applicant) for review of a decision made by a delegate of the Australian Postal Corporation (the respondent) and affirmed on internal review, denying liability for injury to the applicant’s cervical and thoracic spine as a result of a motorcycle accident in May 1999.
2. At the hearing the applicant was represented by Mr D Rangiah of counsel instructed by Maurice Blackburn Cashman Solicitors. The respondent was represented by Mr G Handran of counsel instructed by Clarke & Kann Solicitors.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T190 as well as exhibits marked A1-A5 for the applicant and R1-R10 for the respondent. Responses to written submissions were filed by 4 May 2005.
BACKGROUND
4. The applicant is aged fifty one years. In 1996, she commenced employment with Australia Post as a postal delivery officer at Caboolture Mail Centre. On 4 May 1999, she was injured in the course of her duties when she fell from her motorcycle in a single vehicle accident when she was negotiating a bend. She was taken by ambulance to Caboolture Hospital but was allowed to go home that day. She sustained injuries to her head including a fractured zygoma, a closed head injury, pierced left ear drum, and facial lacerations as well as sustaining fractured ribs, a fractured finger on left hand and a right foot injury.
5. The applicant claimed for fractures to cheek, fracture to little finger left hand and bruises and grazing to cheek elbow hip and hands (T6) (the first claim). The conditions that have been accepted by the respondent for compensation since the motorcycle accident are:
(a) fractured cheek bone/eye socket;
(b) fractured knuckle of her left fifth finger;
(c) fractured ribs;
(d) ruptured left ear drum;
(e) injury to her right foot;
(f) facial lacerations, abrasions and permanent scaring;
(g)adjustment disorder with depressed mood.
6. Not all these injuries were the subject of separate formal determinations of liability at or about the time of the motorcycle accident. The first formal determination was to accept fractured zygomatic bone and fractured left 5th proximal phalanx. Nevertheless, it seems that treatment was provided for a range of medical conditions and the applicant was overseen by a rehabilitation case manager during 1999.
7. The applicant was advised on 3 November 1999 (T66) that the respondent proposed to cease payment of compensation as her general practitioner had notified that she was fit to return to full duties. When the applicant reported to Australia Post about that time that she was experiencing problems with her right foot, her claim was reconsidered and on 22 November 1999 (T74) compensation was extended to cover injury to her right foot.
8. On 8 March 2001, the applicant lodged a claim for lower and upper back …recurring from accident on 4.5.99 (T97) (the second claim). Her claim for these conditions was rejected on 23 July 2001 (T113). The delegate also determined that the applicant had no further entitlement to compensation under the legislation in respect of the motorcycle accident. Recent decisions of the Federal Court and this Tribunal make plain that the latter decision is invalid: Oudyn v Australian Postal Corporation (2003) 73 ALD 659; Re Lui and Comcare [2004] AATA 617.
9. The first time that a neck condition was referred to was in a letter from the applicant’s solicitors dated 29 October 2001 (T135) (the third claim).
10. In a decision dated 11 September 2002 (T186) Mr E Casey, manager, compensation and rehabilitation, identified all medical conditions (as set out at par 5 above) that related to the motorcycle accident. Some of those had been the subject of formal determinations, others had not, and therefore part of his determination process was to formally record, it seems for the first time, the acceptance of liability for certain of the medical conditions. He also accepted that overall, the medical evidence indicated that the applicant had made a full recovery from all injuries. For this reason he agreed with the earlier decision that there was no current compensation payable.
11. Mr Casey agreed with the original decision-maker that liability should not be accepted for the applicant’s neck and back problems, but said he would not review that decision. The review of the decision rejecting the claim for neck and back conditions was carried out by the reconsideration delegate on 6 November 2002 (T190). The reconsideration delegate concluded that the applicant does not now suffer from injury to the thoracic and cervical spine, and on that basis, liability was denied. This is the only matter for which the applicant now seeks review by this Tribunal.
12. The issue for the Tribunal is whether the respondent incurred a liability for compensation under s14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in relation to neck and back conditions.
EVIDENCE
13. In a written statement dated 20 November 2003 (exhibit A1), the applicant stated that she was away from work for about a month after the motorcycle accident, although in oral evidence she agreed it was nine days. She was unable to recall a number of details of the accident, and could not recall talking to the police or ambulance officers who attended the scene. She could not recall whether she mentioned the presence of any back pain at the Caboolture hospital on the day of the accident. She said in oral evidence that she could recall being lifted from a stretcher at the hospital and that she was experiencing pain in her face, neck, ribs and finger.
14. The accident report completed by Queensland Ambulance Service (T184) at the scene of the accident recorded that the applicant was fully oriented, after earlier being found unconscious on the roadway by a passer-by twenty minutes prior to the ambulance arrival. It seems, amongst other information that she provided to them, that the applicant told the ambulance workers that she had no neck or back pain.
15. The applicant agreed that when she completed her original claim form (T6) she had made no mention of neck or back pain. She also agreed that she had cited only lower and upper back pain, not neck pain, when she made the claim in March 2001. She was clear in her oral evidence that she has never suffered from lower back pain and could not explain why she had referred to lower back pain in the second claim. She stated however that she commenced experiencing pain, located in the lower scapular area and left side of the neck, about two weeks after the motorcycle accident. She said that after the accident she was in pain from the waist up and that the severity of her early pain from fractured ribs masked the neck and back pain that was nevertheless present.
16. The applicant acknowledged in her evidence that she has maintained a full range of movement in her neck and her back. She acknowledged an earlier pulled muscle in 1996 after lifting a crate and other falls from the motorcycle prior to the motorcycle accident in 1999.
17. In her oral evidence the applicant said that she believed that she had told Dr J Anderson, general practitioner, about neck and back pain but agreed that it was possible that she did not. She also agreed that it was possible that she did not tell her rehabilitation case manager in May and June 1999 that she was suffering neck and back pain. The applicant stated that she had a week’s absence from work due to back pain in March 2001, before she lodged her claim.
18. Dr J Sowby, specialist in occupational medicine, first examined the applicant on 14 July 1999 as part of an assessment of the applicant’s fitness for duty and for rehabilitation. In his report dated 16 July 1999 (T43), he referred to the applicant giving the following history:
As her rib fractures have settled she reports that she now also experiences left sided neck and thoracic back pain.
Her fractures have been treated conservatively and have healed. She has had ongoing hands on physiotherapy since then and has been making steady progress with this.
19. In his assessment Dr Sowby referred to neck/thoracic sprain – residual deconditioning in her left neck support structures and thoracic spine support structures and recommended that she continue with physiotherapy and a conditioning program, focussing on flexibility in the neck and thoracic structures. In his oral evidence he said that the residual deconditioning to which he referred was a loss of function probably due to her inability to exercise because she had sustained multiple injuries in the motorcycle accident.
20. Ms K Kerr, physiotherapist, was first consulted by the applicant on 1 July 1999, on referral from Caboolture Hospital and at the request of Australia Post. In the Physiotherapy Assessment Form completed at the first consultation, Ms Kerr recorded the applicant’s complaints of pain, in written and diagrammatic form, as being in her left lower ribs and central low cervical spine. Ms Kerr also noted on this form that the condition was acute rather than chronic and had been present for 8 weeks. When she discharged the applicant from her care on 16 August 1999, she noted the applicant was fully recovered.
21. In a letter to Dr Anderson, dated 8 July 1999 (exhibit A3), Ms Kerr stated that the main injuries were left ribs, neck, and finger. She stated:
Neck and thoracic movement was limited by pain and stiffness, with pain at C6/7, and at ribs 7-9(L) being most affected. This appears to represent some strain of (L)CV joints 7-9…and possibly aggravation of chronic disc symptoms….
The rib pain has settled with mobilisation. The neck symptoms have been slower to settle as I believe the work with her arms overhead has led to aggravation of symptoms.
22. On 15 July 1999, an Australia Post rehabilitation case manager requested that Ms Kerr add a hydrotherapy component to the applicant’s treatment programme and referred to Dr Sowby’s recommendation that the applicant undertake a conditioning programme to improve her strength and flexibility. Ms Kerr reported to Dr Anderson on 8 August 1999 (exhibit A3) that the applicant’s symptoms of increased pain and spasm after undertaking work had settled with a light weights programme and physiotherapy. On 13 August 1999, Ms Kerr reported that the physiotherapy programme was complete and the applicant’s symptoms had stabilised with minimal discomfort in the thoracic spine after undertaking her work duties, and no neck pain.
23. Dr Sowby reviewed the applicant on 14 June 2000 and made no specific mention of back or neck conditions, but came to the general conclusion: examination of her recent injuries was essentially normal except for some minor deformity of her left little finger (T94). However, in a report dated 15 March 2001 (T105), Dr Sowby recorded that the applicant complained of ongoing neck, thoracic, and lumbar pain since her motorcycle accident, though the applicant had told him that x-rays organised by her general practitioner showed no abnormality. When Dr Sowby later viewed these x-rays, (report dated 22 March 2001) (T106), he noted that while essentially normal, there was the expected (mild) degeneration for a woman of her age. After blood tests also produced normal results, Dr Sowby concluded that while the cause of the applicant’s back and neck pain was unclear, it was likely as a result of degeneration and/or fibromyalgia (T108).
24. Dr Sowby saw the applicant at Northgate Mail Centre in May and June 2001 and by June 2001 the applicant reported to Dr Sowby, after an ergonomic assessment was conducted in April 2001 and changes were made to the applicant’s work practices, that her neck and shoulder symptoms improved by 85% (T109 and T110).
25. In a report dated 1 April 2005, (exhibit R6), Dr Sowby stated that at his first consultation with the applicant in July 1999 she told him that two weeks after the motorcycle accident, she had first experienced back pain starting in her lower thoracic spine and moving to the lumbar area. She had also described neck pain radiating towards her head. He concluded that it was unlikely that the applicant injured her thoraco-lumbar spine significantly in the motorcycle accident because the symptoms occurred two weeks after the accident. He said that he believed that the back and neck symptoms were soft tissue symptoms related to deconditioning or degeneration.
26. In his oral evidence Dr Sowby said that three factors persuaded him that there was no relationship between the applicant’s back and neck complains and the motorcycle accident: the absence of symptoms for two weeks; the absence of discrete lesions in radiological reports; and the likelihood that soft tissue injuries would be expected to get better. He acknowledged in cross-examination, however, that some patients report ongoing symptoms of soft tissue injuries.
27. Dr S Goode, visiting specialist in occupational medicine at Australia Post medical services unit, reviewed the applicant on 1 May 2002 (T160) and took from her a history that she experienced no thoracic or cervical pain prior to the motorcycle accident. Dr Goode noted the x-ray findings and concluded that the applicant had pre-existing degenerative changes that were not related to the accident. He said that if the applicant had been injured in these parts of her spine in the motorcycle accident she would have experienced immediate symptoms of pain. In his oral evidence he said that the applicant’s back and neck complaints were minor and she would not have the full range of movement of the cervical and thoracic spine that she has now if she had sustained significant injury in the motorcycle accident. Dr Goode saw the applicant’s case as being a temporary aggravation of underlying degeneration, from which she would have recovered in a matter of months. Any ongoing symptoms would be wholly attributable to the underlying (minor) degeneration (exhibit R7).
28. Dr P Boys, orthopaedic surgeon, and Dr P Landy, neurologist, first examined the applicant in 2004. The applicant told Dr Boys that she had experienced headaches and neck pain after the motorcycle accident and had commenced physiotherapy. Dr Boys concluded in his report dated 21 June 2004 (exhibit R6), that the applicant had essentially normal test results when he examined her and did not demonstrate any restriction in range of movement. He said nevertheless that a soft tissue injury to the neck would be consistent with the type of facial and closed head injury that she sustained in the motorcycle accident. Dr Landy agreed in regard to injury to the neck, stating in a report dated 21 June 2004 (exhibit R3) that the applicant probably would have suffered some soft tissue injury (to the thorax and neck) which would have caused symptoms for about three months.
29. In oral evidence, Dr Landy said that in his more than fifty year’s clinical experience, virtually all patients report pain from soft tissue injury immediately, and such injury has a recovery time of one to three months. He said that the applicant would have taken most strain on her head, where she did sustain injuries but no significance could be placed on the application of a neck brace at the scene of the motorcycle accident as this would be a routine precaution. He noted that the applicant did not report neck or back pain at the hospital.
30. Dr B Halliday, consultant orthopaedic surgeon, like Drs Landy and Boys, did not examine the applicant until years after the motorcycle accident. He obtained from the applicant a history of back and neck pain present from the accident which she said was located in the region of the thoracic spine and radiating up the neck towards the head. In his report dated 18 August 2003 (exhibit A2), he described her thoracic pain, said by her to be present at all times but worsened by activity, as located in the interscapular regions and down both sides of the scapulae. In oral evidence, Dr Halliday said that he believed that the interscapular pain was referred to pain from the neck. He diagnosed soft tissue injuries of the cervical spine.
31. In oral evidence, Dr Halliday said that the nature of the injury, involving the applicant’s head impacting on the ground, involved an aggressive flexion and extension movement of her neck. However, under cross-examination, he said that an absence of report of pain for a period of two months after the motorcycle accident would not fit with his diagnosis of soft tissue injury arising from the accident.
CONSIDERATION OF THE ISSUES
32. Before compensation is payable under the Act, there must be an injury that arises out of or in the course of employment (or a disease which was contributed to in a material degree by employment, though disease is not raised in this case). Section 53 of the Act requires an injured employee to notify the employer in writing as soon as practicable after they become aware of the injury. The respondent did not take issue with the applicant’s delay in notifying injury to her back and neck arising from the motorcycle accident.
33. Section 14 of the Act provides that compensation will be paid to an employee for injury suffered by an employee, which results in death, incapacity for work, or impairment. Section 4 of the Act defines injury as:
4 Interpretation
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
….
34. Mr Rangiah submitted that the sole issue for determination by the Tribunal was whether the respondent is liable under s14 of the Act to pay compensation in respect of injury to the applicant’s cervical and/or thoracic regions. He submitted that this question relates to the motorcycle accident and is not answered merely by assessing whether the applicant now suffers from the effects of injury. Mr Rangiah submitted that the respondent misunderstood the nature of the review and had addressed the question as if it were one of present incapacity (an issue relating to s19 of the Act) rather than liability under s14 of the Act: Re Liu and Comcare. He submitted that the evidence showed conclusively that the applicant sustained injury to the thoracic and cervical region of her spine in the motorcycle accident, and it did not matter whether the injury was described as soft tissue injury, or the result of deconditioning, or was an aggravation of pre-existing degenerative changes.
35. The Tribunal accepts Mr Rangiah’s submissions about the operation of the legislation, as set out in Federal Court decisions including Plumb v Comcare (1992) 39 FCR 236 and Oudyn v Australian Postal Corporation. He correctly states that the question of liability is not determined solely by evidence about the present state of an injury that might have been sustained at an earlier time. Nevertheless, such evidence may assist in forming views about causation, and will be necessary particularly in cases, where, as here, the applicant has delayed in lodging a claim or notifying a specific injury. In such cases the respondent, when carrying out the necessary investigations of the occurrence and what happened thereafter, is likely to be disadvantaged by the lapse of time.
36. The Tribunal accepts Mr Handran’s submission that the Tribunal must decide whether the applicant’s motorcycle accident did in fact and in truth contribute to cervical and spinal conditions: Treloar v Australian Telecommunications Commission (1990) 26 FCR 316. However, the Tribunal does not accept his submission that there must be positive finding that the applicant now suffers one or more spinal conditions, and has done so since 3 November 1999 (the date when she was advised she would receive no further compensation payments for her then accepted medical conditions) before these can be said to have arisen from her employment. For the reasons outlined above, this is not a correct statement of the law. The Tribunal notes in passing that the respondent accepted liability (T186–see paragraph 10 above) for a number of medical conditions claimed in 2002 as related to the motor cycle accident despite the fact that the applicant by then had recovered from these injuries.
37. Mr Handran submitted that the medical evidence did not support the occurrence of back and neck injury in the motorcycle accident. He submitted in the alternative, that the evidence showed at most a soft tissue injury which would have resolved. He submitted that the applicant’s claims to constant back pain were inconsistent with Ms Kerr’s evidence that, by mid-August 1999, the applicant had fully recovered from her injuries, however described, arising from the motorcycle accident. Mr Handran submitted that if the Tribunal were to conclude that pre-existing spinal condition(s) were aggravated by the motorcycle fall, the applicant recovered fully by November 1999.
38. Mr Handran urged, however, that the applicant’s evidence was inconsistent and unreliable. He noted that she made no complaint of pain until early 2000, and minimised other possible causes of her symptoms (including extensive periods of house painting and indications that she was lifting furniture at times). He said that the applicant could not adequately explain her failure to include symptoms of back or neck pain when she lodged her first claim for the motorcycle accident in 1999, or her failure to include neck pain in her second claim.
39. What the applicant has to show is causation or aggravation. The issues that arise (though in relation to an earlier Act) have been considered by the Federal Court in Elleissy v Australian Telecommunications Commission (1989)18 ALD 240 at 242:
“It will be recalled that s 29(1)(b) looks alternatively to whether the employment by the Commonwealth was a contributing factor to the contraction of the disease or whether it was a contributing factor to the aggravation, acceleration or recurrence of the disease. The meaning of the words” aggravation" and "acceleration" and the related issue of what is meant by the requirement that the employment be a contributing factor to the aggravation or acceleration of a disease has been the subject of a number of decisions ….. For present purposes it is sufficient to say that the issues of whether the employment was a contributing factor in the disease itself or in the aggravation or acceleration of the disease are each separate issues. Aggravation and acceleration have different although partly overlapping meanings. Both words suggest that there is an existing disease and where aggravation is involved the case will be one where the existing disease has been made worse, or more serious to the patient. Acceleration probably involves a progressive disease, the onset or seriousness of which is speeded up.”
40. The applicant’s evidence is that she has not experienced restricted movement and from the medical evidence it was clear that she now has few clinical signs of thoracic or cervical spinal problems, apart from mild and expected levels of degeneration for a woman of her age. The applicant reiterated a number of times that she has never suffered low back pain (though some doctors recorded lower back pain in history taking) and has never suffered restricted range of movement in her neck or her back.
41. The Tribunal gained little assistance about the accident and what happened subsequently from the applicant’s evidence at the hearing or her written statement (exhibit A1). She could recall little detail, despite her insistence that she experienced symptoms of back and neck pain within two weeks of the motorcycle accident. The Tribunal does not accept the applicant’s evidence that she experienced back and neck pain in that time. The Tribunal had the advantage of the Queensland Ambulance record which noted no injury to her neck and back. While not conclusive on its own, it is part of the contemporaneous reports, none of which show that she told anyone of the onset of symptoms within two weeks, at a time when ordinary experience suggests that a person would be keen to ensure that all injury was properly seen to. The applicant was seeing her rehabilitation case manager regularly in May and June 1999 and was attending her general practitioner. If she were experiencing symptoms which she now says appeared within two weeks, it would be expected that she would report them then.
42. Even taking into account that the applicant sustained significant injuries in the motorcycle accident and would have been suffered high levels of pain particularly from the fractured ribs, the Tribunal does not accept her explanation that at that time she was mistakenly attributing symptoms of back pain and neck pain to her other injuries.
43. Nevertheless, the applicant did report back pain to Dr Sowby in July 1999, some eight weeks after the accident. This is a relatively early report of the condition(s) for which the applicant then delayed claiming for almost two years. Without this early complaint about the same kind of pain for which she later claimed, it would be difficult for the applicant to assert a connection with the motorcycle accident. It is noteworthy also that Dr Sowby’s report in July 1999 does not stand on its own but is confirmed by Ms Kerr’s evidence. The applicant was attending Ms Kerr for physiotherapy immediately prior to seeing Dr Sowby. When he examined the applicant in July 1999, Dr Sowby thought that physiotherapy also would help her symptoms of back and neck pain. He considered she was suffering the effects of de-conditioning of her muscles as a result of lack of use after the motorcycle accident. In that sense there was a connection with the other injuries that she sustained such as fractured ribs.
44. Although specialists in their fields of orthopaedics and neurology, Drs Halliday, Landy and Boys could not have the insight that Dr Sowby had as a result of having the opportunity to examine the applicant closer to the time of the accident. They could only speculate on what might have occurred four or five years earlier but were reliant on the accuracy of the history she gave them, which as the Tribunal noted above, was not comprehensive or consistently given. Their task was made more difficult when the applicant had few demonstrable symptoms four or five years later. Their opinions had to rely heavily upon their clinical experience of similar accidents, taking account of contemporaneous reports of the applicant’s facial and rib injuries. It is noteworthy that there seem to be no x-ray or other studies taken prior to 2000.
45. The Tribunal agrees with Mr Handran’s submission, referring to McAuliffe v Comcare [2002] FCA 769, that what is required is a commonsense evaluation of the causal chain, and rests on questions of fact that are determined on the basis of evidence, including expert opinions. Applying those principles, based on the evidence of Dr Sowby and Ms Kerr, the applicant made an early complaint of symptoms of pain in her neck and her back and the Tribunal has no reason to doubt that she was honestly reporting symptoms that she then experienced. The evidence does not suggest that she was experiencing symptoms of pain in her neck and her back prior to the accident. Even though she had earlier falls from the motorcycle and sustained other injury when lifting at work, it seems that she recovered from these.
46. No alternative cause than the motorcycle accident was suggested for the symptoms of which she complained in July 1999 to Dr Sowby and to Ms Kerr. These are all circumstances which relevantly may be taken into account in drawing an inference that there was a connection between the accident and injury: Tubemakers of Australia v Fernandez (1976) 50 ALJR 720.
47. The medical evidence diverges on causation of these symptoms, but there are some common threads. There is substantial agreement that the injury was soft tissue in nature. Dr Boys and Dr Landy agreed that soft tissue injury to the neck and thoracic spine would be consistent with the nature of other injuries to the head and the ribs that the applicant sustained. Dr Halliday diagnosed soft tissue injury to the cervical spine (he did not see her as having a separate thoracic injury, but considered that her experience of pain there was referred pain from the cervical spine). Dr Sowby diagnosed soft tissue injuries, but as a sequelae of the other injuries sustained by her in the fall.
48. Dr Goode saw the sequence as an aggravation of underlying degeneration of these areas of the spine that would be expected in a woman of her age at the time of the accident. He did not see her until 2002 and had no evidence concerning what level of degeneration was present in her spine at the time of the accident. The weight to be placed on inferential reasoning of the kind utilised by Dr Goode was addressed in Caswell v Powell Duffryn Associated Collieries [1939] 3 All ER 722 as follows:
“There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish… But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
49. The Tribunal agrees with the submission of Mr Rangiah that in the end these discrepancies between whether the accident caused soft tissue injuries, or whether her other injuries resulted in back and neck symptoms because of deconditioning of muscles, or whether she had an aggravation of an underlying degenerative condition in her spine, do not serve to deny the applicant an entitlement to compensation, coming within s14 of the Act. Because of the definition of injury in the Act, the alternative explanations are encompassed by the legislative definition as injuries in the course of employment. The Tribunal preferred the evidence of the orthopaedic specialists that the injury was to soft tissue, caused when the applicant fell from her motorcycle to the road, sufficiently heavily to fracture her cheek bone and her ribs. The Tribunal accepts their evidence that the nature of soft tissue injury is that it gets better, and that a likely period for recovery is from one to three months, excepting unusual cases.
50. The Tribunal does not accept the applicant’s evidence that she has continued to suffer symptoms since the time of the motorcycle accident. She did not make any reference to back or neck problems in November 1999 when she made her claim for a right ankle problem related to her motorcycle accident. She did not report symptoms to her general practitioner in 1999, and on 13 April 2000 (T145) stated to her general practitioner that she had neck and back pain for three months. She told Dr Sowby in March 2001 that she noticed symptoms after painting during holidays in November 1999 (exhibit R8). When she saw Dr Sowby in June 2000 she made no mention of neck or back symptoms.
51. The Tribunal was satisfied that the applicant recovered from her symptoms by the time that she was discharged from the care of the physiotherapist Ms Kerr, on 18 August 1999. That is, she recovered in the expected time anticipated for soft tissue injuries. However, the preferable date for the end of any entitlement to incapacity payments or payments of medical expenses related to this claim for neck and back pain is 10 September 1999 when her general practitioner gave her full clearance as fit to return to work.
52. The Tribunal finds, therefore, that at the time that she made the claim in March 2001 the applicant no longer suffered thoracic or cervical spine injuries that were related to the motorcycle accident.
53. It seems that the applicant was covered by compensation for a range of medical treatments in the immediate period after her motorcycle accident, consistently with her general practitioner completing medical certificates with the description multiple motor bike injuries rather than a more specific diagnosis, or limited to the originally accepted conditions of fractured zygomatic bone and fractured left 5th proximal phalanx. However, the question of any further entitlements under s16 and s19 of the Act is remitted to the respondent for assessment.
54. For these reasons, the Tribunal sets aside that part of the reviewable decision dated 6 November 2002 that affirmed a decision rejecting the respondent’s liability under s14 of the Act for compensation for thoracic and cervical spine injuries resulting from the applicant’s motorcycle accident on 4 May 1999. The Tribunal finds that the applicant sustained soft tissue injuries to her cervical and thoracic spine and further finds that she recovered from these injuries by 10 September 1999.
DECISION
55. The reviewable decision dated 6 November 2002 is set aside and the Tribunal substitutes the decision that the respondent is liable to pay compensation for soft tissue injuries to the applicant’s cervical and thoracic spine (the injuries) sustained on 4 May 1999. Under s16 and s19 of the Act, respectively, the applicant is entitled to the cost of any reasonable medical treatment for the injuries and is entitled to incapacity payments from 4 May 1999 until 10 September 1999, that is, the date when her injuries resolved.
56. In all other respects the reviewable decision dated 6 November 2002 is affirmed.
57. The respondent is liable under s67(8) of the Act to pay the applicant’s costs of the application as it relates to the injuries.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Jenny Tran
AssociateDate/s of Hearing 27, 28 April 2005
Date of Decision 23 June 2005
Counsel for the Applicant Mr D Rangiah
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Mr G Handran
Solicitor for the Respondent Clarke and Kann
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